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Frazier v. Colvin

United States District Court, W.D. New York

June 6, 2017

ROBERT D. FRAZIER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Proceeding pro se, Robert D. Frazier (“plaintiff”) brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying his request to waive an overpayment of $12, 644.66 in supplemental security income (“SSI”) benefits, which payments plaintiff received over the time period from May 1, 1997 through July 1, 2002. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings[1] pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's motion is granted.

         II. Factual Background and Procedural History

         Plaintiff was initially found eligible for SSI benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1601 et seq., and received SSI payments from May 1, 1997 through July 1, 2002. This action concerns plaintiff's overpayment for SSI benefits during that time period. Ultimately, either while working and receiving wages, or while unemployed and receiving unemployment compensation, plaintiff continued to receive SSI overpayments through July 2002. Plaintiff alleges that he reported his various full-time jobs to the local SSA office by written correspondence, but the record contains no record of such correspondence.

         As early as June 14, 1999, the Commissioner sent a billing statement to plaintiff for an overpayment of benefits in the amount of $2, 253.64, which the Commissioner demanded be repaid by July 1, 1999. On November 8, 1999, the Commissioner sent a letter to plaintiff informing him of his options to contest the demand for repayment of $7, 499.90. The letter stated that the Commissioner had “tried several times to collect this amount, but it has not been repaid.” T. 209. Over the years that followed, plaintiff was informed on multiple occasions of his growing liability for overpayment of SSI benefits. See T. 150 (March 28, 2002 letter); 165 (August 14, 2002 letter); 187 (December 5, 2006 letter). As of December 5, 2006, the SSA began withholding $138.00 per month from plaintiff's DIB benefits, which amount would be withheld until such time as the full overpayment balance of $12, 772.66 was repaid to the SSA.

         On January 18, 2007, plaintiff requested a waiver of the overpayment. The SSA denied that request on June 8, 2007. On August 13, 2007, plaintiff requested an administrative hearing to resolve the overpayment issue. That hearing was held on February 4, 2009, before Administrative Law Judge (“ALJ”) James Dombeck. Plaintiff was represented by counsel at that hearing. On June 12, 2009, ALJ Dombeck issued an unfavorable decision denying plaintiff's request for a waiver of the overpayments. Plaintiff appealed on July 22, 2009, and on March 25, 2011, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings, including a new hearing during which plaintiff could “question the Administration's Technical Expert.” T. 247-48. The order directed that “the [ALJ] . . . offer the claimant an opportunity for a hearing, take any further action needed to complete the administrative record, and issue a new decision.” T. 248.

         A second hearing, at which plaintiff appeared pro se, was held before ALJ David Lewandowski on August 23, 2011.[2] Plaintiff testified at that hearing, as did Jennifer Maston, an SSA operations supervisor (“OS”) proficient in SSI. OS Maston testified at length, in response to questions posed by ALJ Lewandowski and plaintiff, regarding plaintiff's SSI overpayments. At the close of the hearing, the ALJ directed OS Maston to produce documentation regarding the time period up through July 2002 indicating what benefits were actually paid and what should have been paid.

         A supplemental hearing was held on January 19, 2012, before ALJ Michael Devlin. Plaintiff testified again, as did OS Maston, who was questioned by the ALJ and plaintiff. Following the hearing, ALJ Devlin issued an unfavorable decision on May 25, 2012. Specifically, the ALJ found that plaintiff was not without fault for causing the overpayment, noting that there was “no credible evidence that [plaintiff] ever reported his actual earnings” during the relevant time period. T. 23. The ALJ concluded that plaintiff's argument that “the overpayment was previously repaid by withholding his underpayments . . . [was] at odds with [SSA] records.” Id. Plaintiff sought review of ALJ Devlin's decision, which the Appeals Council denied on March 19, 2014. This timely action followed.

         III. Discussion

         Recovery of overpayments is governed by 42 U.S.C. § 1383(b)(1), which provides in pertinent part as follows:

The Commissioner of Social Security (i) shall make such provision as the Commissioner finds appropriate in the case of payment of more than the correct amount of benefits with respect to an individual with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment, if adjustment or recovery on ac-count of such overpayment in such case would defeat the purposes of this subchapter, or be against equity and good conscience[.]

42 U.S.C. § 1383(b)(1)(B) (emphasis added). The regulations provide that recovery of an overpayment is “against equity and good conscience . . . if an individual . . . [c]hanged his or her position for the worse . . . or relinquished a valuable right . . . because of reliance upon a notice that a payment would be made or because of the overpayment itself . . .” 20 C.F.R. § 404.509(a)(1).

         “The Secretary's determination of whether these factors have been satisfied may not lightly be overturned.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). The familiar “substantial evidence” standard of review applies to actions brought pursuant to § 1383: “[T]he district court must uphold a decision by the Secretary that a claimant was not without fault if it is supported by substantial evidence in the record as a whole . . . and the Secretary's exercise of her judgment on the basis of such factual determinations is entitled to considerable deference. The court may not substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon de novo review.” Id. Finally, “[t]he burden of proof to show that ...


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